5.03.2009

The details of President Obama's time as a law professor never fully came out during the campaign, as far as I saw. Perhaps now that he has been elected, more of his former students and colleagues are willing to talk, as evidenced by this fascinating article in the New York Times, "As a Professor, a Pragmatist About the Supreme Court."

It is an admiring piece, digging into Mr. Obama's views on the Supreme Court and Constitutional law, as well as how his thinking and past decision making might influence the choice he has now: to make a nomination for the soon-to-be vacant seat on the Court. It is this detailed look at his temperament and thought process that is illuminating.

This may be his distinguishing quality as a legal thinker: an unwillingness to deal in abstraction, a constant desire to know how court decisions affect people’s lives.

“The University of Chicago was and is full of eminent theorizers who wrap up huge areas of the law by applying some magic key,” said David Franklin, a former student. “He didn’t do any of that; he wasn’t interested in high theory at all.” [bold added]

By the rules of pragmatism, this is the perfect attitude. Why deal in "high theory" if there are no priniciples, no objective facts of reality? It is only the impact on people, the thoughts and feelings of others, that is real.

Former students say that Mr. Obama does not particularly prize consistency or broad principle. Adam Bonin arrived in Mr. Obama’s class with the firm belief that drawing districts to ensure minority representation should be illegal. “It struck me as wrong that the legislature should pick and choose what interests should be represented in the legislature,” Mr. Bonin said.

“What I took from the class and the reading materials was the reality that unless these voices are physically present in a legislature, they won’t be heard,” he said. “As long as everyone is grabbing for power, members of racial minority groups ought to do the same.” [bold added]

Principle: 0. Power-grabbing: 1. True to the second-handedness of his views, political power -- inevitably, the ability of one group to impose its views on another -- is more important than anything else. The important thing is that the process is democratic. One can presume, based on everything else we know about the man, that individual rights are not the key concern, but the deliberative nature of democracy, and that everyone feels like they have a say.

“He sees the political process as the place that a lot of these large, difficult public policy questions ought to be resolved,” said Richard Pildes, a professor at New York University law school whom Mr. Obama met through their mutual interest in election law.

Even as law review president, Mr. Obama de-emphasized his own views and instead made himself a channel for those of others.His decision making was “about the group sentiment and what the group majority might agree to,” said Nancy McCullough, a fellow editor. [bold added]

What if, after the majority rules, it's not what he thinks represents social justice?

Mr. Obama often expressed concern that “democracy could be dangerous,” Mr. Stone said, that the majority can be “unempathetic — that’s a word that Barack has used — about the concerns of outsiders and minorities.”

This is why the behavioral economist brain trust of Cass Sunstein, Dan Ariely and others, is so valued by Mr. Obama. By nudging, he and his administration can ensure that his deeply held progressive ideas can be implemented without hurting anyone's feelings, or his having to come out and say anything definitive. With the Democratic majorities in the Congress, he has less to be concerned with in terms of righting social wrongs imposed by elected officials, but I'm sure it's a nice cushion to have. He can even nudge in support of the progressive policies enacted by Congress, a perfect one-two punch, knocking out liberties in favor of entitlements to the oppressed.

I highly recommend reading the full NYTimes piece. During the Bush years, it was important to understand his thought process or lack thereof; it's hard to call "having a personal conversation with Jesus" actual thought. It is similarly important to understand Mr. Obama's thought process, and this article is quite informative in that regard.

3 comments:

I find, as apparently you have found, that articles and books written by the subject's supporters are often more revealing than articles written by supposedly critical writers. The supporters often are more likely to reveal the subject's radical ("extreme") positions and their underpinnings.

The New York Times is notorious for its left-wing bias -- and yet it is an excellent source of news about left-wing movements and their leaders. The reporters let their guard down and reveal underlying values. (Another value of the NYT is that the articles are often quite long, and, if read to the end, contain fascinating comments and quotable statements.)